TaxTMI 
TaxTMI 
2018 (1) TMI 1640
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.... as "NI Act"), came to be dismissed in default for non-presence and non-prosecution, when the case was listed for recording of defence evidence. 2. It is apt to reproduce the impugned order herein: 3. In view of Section 143 of the NI Act, offence under Section 138 of the NI Act is to be tried summarily and accordingly, procedure for summons case provided in Chapter XX of the Code of Criminal Procedure (hereinafter referred to as "Cr.P.C.") is applicable during the trial initiated on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 Cr.P.C. deals with a situation of non-appearance of death of complainant. 4. In the judgment passed by Allahabad High Court in case titled as Vinay Kumar versus State of U.P. & A....
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....he complainant from his personal attendance if it is found not necessary and to proceed with the case. Also, when the complainant is represented by a pleader or by the officer conducting the prosecution, the Magistrate may proceed with the case in absence of the complainant. 7. When the Magistrate, in a summons case, dismisses the complaint and acquits the accused due to absence of complainant on the date of hearing, it becomes final and it cannot be restored in view of Section 362 Cr.P.C., which reads as under: "362. Court not to alter judgment. -Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the ....
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....or examination of witnesses on behalf of the defence, the apex Court has considered as to whether provisions of Section 256 Cr.P.C., providing for disposal of a complaint in default, could have been resorted to in the facts of the case as the witnesses on behalf of the complainant have already been examined and it has been held that in such a situation, particularly, when the accused had been examined under Section 313 Cr.P.C., the Court was required to pass a judgment on merit in the matter. 11. This Court in N.K. Sharma's case (supra) also, relying upon in Associated Cement Co. Ltd.'s case (supra), has held that when the Court notices that complainant is absent on a particular day, the Court must consider whether the personal att....
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....ailed to appear on the date fixed without any reason and, therefore, the Magistrate was having no option other than to dismiss the complaint. 15. It is true that Magistrate has a discretion to dismiss the complaint for default resulting into acquittal of the accused. However, in present case, for the discussions made hereinafter, I am not in agreement with the contention of the learned counsel for the respondent. 16. It is also submitted by learned counsel for the respondent that a Civil Suit involving the amount of cheque under consideration for recovery of Rs. 25,40,000/- has been decreed ex-parte against the respondent wherein the respondent has undertaken proceedings for setting aside the ex-parte decree. Further, that it would be app....
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....t have been done, but so far as recording of evidence is concerned, the Court might have proceeded further in recording the evidence in defence. 19. The facts of present case are identical to the facts involved in S. Anand's case (supra). 20. In view of the ratio of law laid down by the apex Court and other judgments of the High Courts, including this Court, I am of the opinion that the learned Magistrate was not justified in dismissing the complaint in default for single absence of the complainant coupled with failure of his counsel to attend the date. From the stage of complaint, it is evident that presence of complainant, on that day, was unnecessary as the case was at final stage. The Magistrate instead of dismissing the complaint....